| Gallagher v 109-02 Dev., LLC |
| 2016 NY Slip Op 02050 [137 AD3d 1073] |
| March 23, 2016 |
| Appellate Division, Second Department |
[*1]
| Brian Gallagher et al., Respondents, v 109-02Development, LLC, Appellant, et al., Defendants. |
Andrea G. Sawyers, Melville, NY (Scott W. Driver of counsel), for appellant.
Edward J. Troy, Greenlawn, NY (Patrick J. Morganelli of counsel), forrespondents.
In an action to recover damages for personal injuries, etc., the defendant 109-02Development, LLC, appeals, as limited by its brief, from so much of an order of theSupreme Court, Queens County (Lane, J.), dated November 22, 2013, as granted theplaintiffs' cross motion for leave to amend the pleadings.
Ordered that the order is affirmed insofar as appealed from, with costs.
"Leave to amend a pleading should be freely given (see CPLR 3025 [b]),provided the amendment is not palpably insufficient, does not prejudice or surprise theopposing party, and is not patently devoid of merit" (Maspeth Fed. Sav. & Loan Assn. v Simon-Erdan, 67 AD3d750, 751 [2009]; see UnitedFairness, Inc. v Town of Woodbury, 113 AD3d 754, 755 [2014]). The "meritsof a proposed amendment to a pleading will not be examined unless the insufficiency orlack of merit is clear and free from doubt" (Sample v Levada, 8 AD3d 465, 467-468 [2004]).
Here, the proposed amendments were not palpably insufficient or patently devoid ofmerit, and they did not prejudice or surprise the defendants, since they merely sought toadd new theories of recovery, without alleging new or different facts. Thus, the SupremeCourt providently exercised its discretion in granting the cross motion for leave to amend(see id. at 467-468).
We do not address the plaintiffs' argument made in point I of their brief, since theplaintiffs did not file a notice of appeal from the order dated November 22, 2013 (see generally Matter of Margary vMartinez, 118 AD3d 1004, 1006 [2014]). Leventhal, J.P., Dickerson, Duffy andLaSalle, JJ., concur. [Prior Case History: 2013 NY Slip Op 33005(U).]